Jammu & Kashmir High Court - Srinagar Bench
Hindustan Petroleum Corporation And ... vs Abdul Rashid Dagga on 29 April, 2021
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
.....
CR No. 05/2019
Reserved on: 18.02.2021
Pronounced on: 29.04.2021
Hindustan Petroleum Corporation and Ors.
......Petitioner(s)
Through: Mr. M. M. Dar, Advocate
V/s
Abdul Rashid Dagga
..... Respondent(s)
Through: Mr Rizwan-ul-Zaman, Advocate
Coram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. This civil revision petition is against the Order dated 06.11.2018, passed by Sub Judge (Chief Judicial Magistrate), Anantnag, (for short "Trial Court") in a case titled Abdul Rashid Dagga v. HPCL and others, whereby application of petitioners/petitioners, filed under Order VII Rule 11 of the Code of Civil Procedure (CPC), has been dismissed.
2. Plaintiff - respondent herein, has filed a suit before the Trial Court, seeking grant of decree for declaration declaring impugned orders issued by defendants/petitioners qua cancellation of reconstitution of dealership agreement and the termination of retail outlet dealership agreement in respect of retail outlet being run by him at NH-1A Bijbehara, under the name and style of R.K. Auto Care HPCL retail outlet as null and void, ineffective and inoperative. He has also sought grant of a decree for permanent prohibitory injunction restraining petitioners / defendants from causing any sort of interference in the smooth running of retail outlet, viz. R. K. Auto Care HPCL retail outlet Bijbehara and also retraining them from forcibly taking the units installed in the unit of the plaintiff/respondent.
2 CR No. 05/20193. Defendants - petitioners herein filed an application under Order VII Rule 11 (a) & (d) of CPC for rejection of plaint, stating that retail outlet was awarded to one Ravinder Kapoor as sole proprietor to run retail dealership of Bijbehara District Anantnag vide dealership agreement dated 09.09.1983; in terms whereof, he was not authorized to assign or transfer dealership licence to any third person. It was also contended by petitioners in their application before the Trial Court that reconstitution proposal submitted by Shri Ravinder Kapoor for inducting Shri Ravinder Kumar as minority partner with 49% share was accepted by petitioners in principle with a condition that the outlet which was under a dealer owned category would be converted as Company Leased category by taking the retail outlet site on lease and, in this regard, dealership agreement dated 23.10.2003, was executed between Sh. Ravinder Kapoor and Sh. Ravinder Kumar as partners of M/s R.K. Auto Care firm. It was also stated that however, later it came to the notice of petitioners that Shri Ravinder Kumar, a new inducted partner, was also a partner and signatory to a dealership agreement of SKO dealership viz M/s Kathua Service Station, Kathua dated 01.09.2000, which fact was not disclosed by them at the time of reconstitution as a person who is already having SKO dealership, cannot have retail outlet dealership in view of multiple dealership norms of the petitioner-Corporation and, therefore, vide letter dated 04.02.2008, the said reconstitution was cancelled and dealership agreement dated 23.10.2003, was also cancelled. The said cancellation of reconstitution was never challenged by Shri Ravinder Kapoor or by Shri Ravinder Kumar and, thus, said decision of the petitioners has already attained finality in the year 2008 itself. Thereafter, Shri Ravinder Kapoor was advised vide letter dated 04.02.2008 to sign a fresh dealership agreement with petitioner-Corporation, but he neither came forward to sign dealership agreement nor entered into lease agreement. It was also maintained that petitioner-Corporation was able to lay hands over a copy of Power of Attorney dated 26.07.1990 purportedly executed by Shri Ravinder Kapoor in favour of Shri Ravinder Kumar, whereby Sh. Ravinder Kapoor had handed over the management and control of retail outlet to Sh. Ravinder Kumar in utter violation of terms of the dealership 3 CR No. 05/2019 agreement and without seeking prior written permission of the Corporation. Not only that said fact of execution of Power of Attorney dated 26.07.19990, was never brought to the notice of the petitioner- Corporation at the time of reconstitution. In view of said facts, the petitioner-Corporation served Shri Ravinder Kapoor with Show Cause Notice dated 10.09.2015, calling upon him to explain violation of terms of standard dealership agreement applicable to Dealer Owned Retail Outlet. He in his response dated 25.02.2016 admitted execution of Power of Attorney in the year 1990, thereby admitting contents of Show Cause Notice that since 1990 it was Shri Ravinder Kumar, running dealership, which was in gross violation of terms of the dealership agreement. Not only that, Shri Ravinder Kapoor further admitted during personal hearing in 2016 that he was not running retail outlet and one person, namely, Shri Abdul Rashid Dagga was running dealership. It was also maintained before the Trial Court that dealership licence, granted by the petitioner- Corporation, is non-assignable in nature and in view of admission on the part of Shri Ravinder Kapoor of violation of terms of dealership agreement, the petitioner-Corporation vide letter dated 26.09.2016, has terminated dealership of Shri Ravinder Kapoor. The petitioner- Corporation also averred before the Trial Court that cancellation of reconstitution of Shri Ravinder Kapoor and Shri Ravinder Kumar vide letter dated 04.02.2008, does not give rise to any cause of action to plaintiff/respondent as he was not privy to said reconstitution proposal. Not only that, the fact that Shri Ravinder Kumar and Shri Ravinder Kapoor never challenged said cancellation, so cancellation order dated 04.02.2008 has attained finality.
4. Plaintiff/respondent resisted application of petitioner-Corporation.
According to him petitioner-Corporation was in know of the fact that plaintiff/respondent was running the retail outlet of petrol and diesel under the name and style of R. K. Auto Care, Bijbehara, from 2007 onwards continuously as he was depositing requisite amount with the corporation regularly and petitioner-Corporation had been supplying the petrol and diesel to retail outlet of the plaintiff without any interruption. It was also stated by respondent before the Trial Court that Shri Ravinder 4 CR No. 05/2019 Kumar Mahajan, executed Special Power of Attorney in his favour qua the retail outlet in question, which was registered by the Sub Registrar concerned. The land on which the retail outlet is existing stands transferred in the name of the plaintiff/respondent vide document registered by the concerned Sub Registrar. The Trial Court by impugned Order dated 06.11.2018, dismissed petitioners' application. It is this order of petitioners are aggrieved and seek its setting-aside on the grounds made mention of in civil revision petition on hand.
5. Heard learned counsel for parties; perused the record on the file; and considered the matter.
6. Having regard to facts and circumstances of the case as discussed herein above, it is to be seen as to whether plaintiff/respondent has any locus to file a Suit and whether he has any cause of action against defendants- petitioners herein, with respect of dealership in question.
7. First of all, locus of plaintiff/respondent is to be considered. It is evident from the record on the file that plaintiff is neither authorized dealer nor had he been authorized by petitioner-Corporation to run the petrol pump in question nor any licence has been granted in his favour by petitioner- Corporation to run petrol pump. He claims to be attorney of Shri Ravinder Kumar, who he claims was owner/partner of the dealership company. The facts enumerated above and pleaded by the plaintiff would show that Shri Ravinder Kapoor was given licence. He introduced Shri Ravinder Kumar as partner. Shri Ravinder Kumar is stated to have already been a partner with SKO dealership, viz. M/s Kathua Service Station Kathua and therefore, the licence that was granted in favour of Shri Ravinder Kapoor has long since been cancelled and has remained unchallenged till date. The original licencee - Shri Ravinder Kapoor, or for that matter Shri Ravinder Kumar, has not thrown challenge to cancellation. So, plaintiff/respondent has no locus standi vis-à-vis subject-matter of the suit. Once that being the position, the suit of plaintiff is not maintainable and the Trial Court has erred in dismissing the application of petitioner-Corporation seeking rejection of plaint under Order VII Rule 11, CPC. To maintain a suit, it is to be seen in the plaint that plaintiff has a cause of action against defendants and when there is 5 CR No. 05/2019 no cause of action accrued to plaintiff against defendants, such a suit is to be rejected under Order VII Rule 11, CPC, which is reproduced hereunder:
"11. Rejection of plaint-- The plaint shall be rejected in the following cases: --
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
8. From the above it emerges that a plaint can be rejected in the event it, inter alia, does not disclose a cause of action or where the suit appears from the statement in the plaint to be barred by any law. In the present case, there is no denial to the fact that there is no dealership agreement between plaintiff/respondent and petitioner-Corporation. The dealership has long since been cancelled by petitioner-Corporation, which has not been challenged by original licencee - Shri Ravinder Kapoor or say Shri Ravinder Kumar. Though the Trial Court has discussed provisions of Order VII Rule 11 CPC, yet it has misdirected itself to dismiss petitioner's application for rejection of plaint.
9. It is germane to mention here that judicial time is precious and ought to be employed in the most efficient manner possible. Sham litigations are one such menace that not only waste time of the courts, but also cause unwarranted prejudice and harm to parties arrayed as defendants in such litigations, thereby defeating justice. In order to deal with such a menace, the Code of Civil Procedure, under Order VII Rule 11 provides litigants option to pursue an independent and special remedy, empowering the courts to summarily dismiss a suit at threshold, without proceeding to record evidence, and conducting trial, on the basis of the evidence 6 CR No. 05/2019 adduced, if it is satisfied that the action should be terminated on any grounds contained in this provision. The Supreme Court in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali, 2020 SCCOnline SC 562 , while dealing with an appeal against an order allowing rejection of a suit at the threshold, had occasion to consider various precedents, discussing the intent and purpose of Order VII Rule 11, to set out the principles in relation to the same. The Supreme Court observed that if no cause of action is disclosed in the plaint, the court would not permit protraction of the proceedings. In such a case, it would be necessary to put an end to the sham litigation, so further judicial time is not wasted. Placing reliance on Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253, the Supreme Court opined that the entire purpose of conferment of such powers under Order VII Rule 11 is to ensure that a litigation, which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the courts, and exercise the mind of the respondent.
10. In the backdrop of above legal position and facts and circumstances of the case, the Trial Court has not appreciated the facts in its right perspective while passing impugned order. In that view of matter civil revision petition requires to be allowed, impugned order is liable to be set-aside and the Suit of plaintiff/respondent warrants dismissal.
11. For the reasons discussed above, the instant Civil Revision Petition is allowed and impugned Order dated 06.11.2018, passed by Sub Judge (Chief Judicial Magistrate), Anantnag, in a case titled Abdul Rashid Dagga v. HPCL and others, set-aside. As a corollary thereof, civil suit of the plaintiff/respondent titled Abdul Rashid Dagga v. HPCL and others is rejected and interim orders passed therein are vacated.
12. Copy of this judgement be sent down.
(VINOD CHATTERJI KOUL) JUDGE SRINAGAR 29.04.2021 "Manzoor"
Whether approved for reporting? Yes/No MANZOOR UL HASSAN DAR 2021.05.17 14:38